1.Can you outline the current
intellectual property landscape with specific reference to the main
regulators and key legislations that apply in your jurisdiction?

Answer: The main
regulator for intellectual property regulations is the Taiwan
Intellectual Property Office (TIPO) who is responsible for drafting and
proposing any amendments of laws relevant to intellectual properties.
The intellectual property rights (IPRs) recognised and enforceable in
Taiwan include patent rights (that are further categorized into
invention, utility model and design), trademark rights, copyrights,
rights of integrated circuit layout (¡§IC layout¡¨), rights of plant
variety, and rights of trade secrets.

2.Does the current intellectual
property regulation sufficiently promote creativity or does it protect
patent trolls and stifle innovation?

Answer: The intellectual
property regulations in Taiwan cover all necessary IPRs protection, and
have been enforced for many years with continuing evolution, so they
theoretically can sufficiently promote creativity. However, to protect
IPRs, such as patents, we must consider some factors outside of
regulations, such as (1) the budgets of the applicants or patentees; (2)
the quality of the service providers who help in patent applications and
prosecutions; (3) the competency of the lawyers in litigation, etc. If
an applicant does not have a sufficient budget, s/he will generally
refuse to hire practitioners to draft a quality patent application.
Similarly, if the patentee does not have a sufficient budget, it is
difficult to hire a lawyer to represent them in court. In other words,
since a patent troll has normally enough of a budget, it will have a
good advantage in protecting its IPRs.

3.What are the key differences among
trade secrets, copyright, trademarks and patents?

Answer:

Trade secrets can
protect know how or an idea which is not publicly known and has economic
value. There is no expiration period for trade secrets as long as they
are under proper security measures.

Patents can protect
functional embodiments of an idea in a form of machines, method/process,
manufacture, compositions of matter, and improvements in any of these
items. However, a patent cannot protect the idea per se. There is an
expiration period for patents.

Copyrights can protect
original and creative expressions of an idea when fixed into a tangible
medium of the expressions ¡V i.e., paintings, photographs, sculpture,
writings, software, etc. However, a copyright owner generally cannot
interfere with an original work which was created by another who does
not have any access to the copyrighted work even though the original
work is similar to the copyrighted work. There is generally an
expiration period for the economic rights on a copyrighted work.

Trademarks can protect
any symbol that indicates the source or origin of the goods or services
to which it is affixed. However, a trademark owner cannot prevent
others from using a similar trademark which designates different
goods/services unless the owner¡¦s trademark is famous. There is an
expiration period for a trademark but the period can be extended
indefinitely by paying renewal fees to the TIPO.

4.What are the different options
available to obtain protection and can you outline the application
process?

Answer: Regarding patent
rights (including invention, utility model, and industrial design),
rights of IC layout, and rights of plant variety, the registration
process is compulsory, so application forms and fees are required to be
submitted to the TIPO. For invention and design patent applications,
they also need to go through substantive examination aside from formal
examination to justify their patentability before grant. Regarding
trademark rights, the registration process is not compulsory, but if one
does not register his/her trademark, the trademark cannot be protected
under the Trademark Act but is under the Fair Trade Act. A trademark
application also needs to go through substantive examination to
determine whether it has distinctiveness and no likelihood of confusion
or mistake. Regarding copyrights and rights of trade secrets, no
registration process is available.

5.How should a business respond if it
is accused of infringing another party¡¦s intellectual property?

Answer: It can claim
defenses such as: (1) the IPR is invalid or has expired; (2)
non-infringement; (3) prosecution history estoppel; (4) prior art
defense; (5) prior use rights; (6) fair use; (7) the right to claim
infringement becomes extinguished because of laches; and (8) right
exhaustion or first sale doctrine.

6.What steps should be taken if it is
believed that your intellectual property has been breached?

Answer: Sending a warning or cease-and-desist letter, developing a
licensing relationship, seeking a settlement/mediation or initiating a
lawsuit before the district or IP Court are all available to the owner
of an intellectual property right against infringement. Further,
injunctions or cross-border measures are available as well. For
trademark and copyright infringements, criminal offenses can be claimed.